Tobacco use is the leading cause of preventable death in the United States, with over 480,000 people dying each year of tobacco-related illness due to smoking or secondhand smoke. States regulate several aspects of tobacco sales and use. From licensing retailers to funding cessation programs, states are active in controlling the use of tobacco and working to reduce the known negative health outcomes from tobacco use on the general public and smokers alike. The resources below provide information on the state of tobacco policy in the United States.
State Action: Tobacco
States regulate various aspects of tobacco sales and use. From licensing retailers to funding cessation programs, states are active in controlling the use of tobacco and working to reduce the known negative health outcomes from tobacco use on the general public and smokers alike. The resources and links below provide information on the various categories of legislation.
Prevention and Cessation
The 1998 Master Settlement Agreement (MSA) requires tobacco companies to pay states millions of dollars each year in settlement funds. A reported $161.7 billion has been paid by tobacco companies nationally between 1998 and 2019.
In the MSA, the states and tobacco companies “agreed to settle their respective lawsuits and potential claims pursuant to terms which will achieve for the Settling States and their citizens significant funding for the advancement of public health, the implementation of important tobacco-related public health measures, including the enforcement of the mandates and restrictions related to such measures, as well as funding for a national Foundation dedicated to significantly reducing the use of Tobacco Products by Youth.”
State spending on tobacco prevention and cessation remains a small portion of the MSA and state tax revenues. In fiscal year 2020, states may collect more than $27 billion in tobacco taxes and MSA dollars and spend an estimated $739.7 million (2.7%) on prevention and cessation programs.
State Prevention and Cessation Programs
Alternative Nicotine Products
Electronic Nicotine Delivery Systems, or ENDS, are noncombustible, battery-powered tobacco products that deliver liquid nicotine as vapor; they’re also known as e-cigarettes or vaping devices. In 2016, the Food and Drug Administration finalized a rule expanding its regulatory authority of tobacco products to include ENDS.
In response to the popularity of ENDS among youth, the FDA, in collaboration with the Centers for Disease Control and Prevention (CDC), issues the National Youth Tobacco Survey annually. According to the survey, an estimated 3.6 million middle school and high school students reported using ENDS in the last 30 days, more than 80% of these students reported using flavored e-cigarettes.
To ensure ENDS tobacco products go through scientific premarket evaluations by the FDA, the administration has conducted, and continues to conduct evaluations of existing and new tobacco products on the market through the Premarket Tobacco Product Application pathway. In 2021, the FDA denied more than one million flavored ENDs products that lacked sufficient proof they could benefit adult smokers or did not address public health concerns related to marketing to youth. At the same time, the FDA did authorize three new ENDs tobacco products. The director of the FDA’s Center for Tobacco Products stated the manufacturer of these three new products demonstrated its tobacco-flavored products could benefit addicted adult smokers who switch by reducing or overcoming nicotine consumption.
Note: The authorized products do not include flavored ENDS products at this time.
State Actions and Policy Trends
Even with the onset of COVID-19 and shifting priorities for states, many continued to pass legislation related to tobacco and ENDS. Throughout the last few years NCSL has tracked almost 1,000 bills. Identified policy trends throughout this time have included:
- Increased taxes.
- Use restrictions by age or location.
- Flavor restrictions.
- Regulation of sales, advertising, manufacturers and distributors.
- Public health orders or state of emergecny declaration, generally classifying electronic cigarette or vape shops as non-critical businesses and directing them to change their business model to reduce prolonged in-person interaction.
The Tobacco Control Act, a federal law signed in 2009, grants authority to the Food and Drug Administration (FDA) to regulate the manufacturing, marketing and sale of all tobacco products. The FDA’s Center for Tobacco Products (CTP) sets standards, regulates products containing nicotine and enforces industry compliance.
The federal law enforcement agency responsible for the enforcement of tobacco diversion and interstate sales is the Bureau of Alocohol, Tobacco, Firearms and Explosives (ATF).
On December 20, 2019, President Trump signed the new Tobacco 21 law. The measure amends the Tobacco Control Act and raised the minimum age for the sale of tobacco products from 18 to 21 years old without exception. Prior to this measure, many local governments and states had implemented their own Tobacco 21 Law but since this measure, at least 28 states have passed legislation to reflect the age of tobacco sales to 21 years old and enforcement provisions.
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